Thursday, April 12, 2012

Pipeline project hits a legal pothole in Pueblo

A Pueblo County judge has reversed a finding by a state agency about water quality certification under the Clean Water Act for the Southern Delivery System, sending the matter back to the state for further consideration.

The decision is a blow to Colorado Springs Utilities' SDS pipeline project, now under construction, that will bring water here from Pueblo Reservoir.

Utilities' spokeswoman Janet Rummel explains in an e-mail to the Indy:

The Colorado Department of Public Health and Environment's (CDPHE) Water Quality Control Division (Division) issued a 401 water quality certification under the Clean Water Act for the SDS project in April 2010, certifying that SDS would comply with all applicable state water quality requirements. The Rocky Mountain Environmental Labor Coalition (RMELC) and Pueblo County District Attorney, Bill Thiebaut, then appealed the CDPHE 401 certification for SDS.

Following extensive review, including testimony from experts at a hearing in December 2010, the Colorado Water Quality Control Commission voted unanimously in January 2011 to confirm the SDS 401 Certification issued by the Water Quality Control Division.

Today, we received Pueblo County Judge Reyes’ ruling regarding the RMELC and District Attorney Thiebaut’s request for a judicial review of the Commission’s affirmation of the Division’s certification. The judge reversed the Commission’s ruling and sent the case back to the Division to revise the 401 Certification.

We are disappointed that the Court disregarded several years of studies and evaluation by federal and state environmental agencies and the extensive mitigation already required of the project.

We are currently evaluating our appeal rights and coordinating with the appropriate state and federal agencies.

Construction of the SDS project is proceeding — providing hundreds of regional jobs and infusing tens of millions of dollars in the southern Colorado economy — while we work to resolve this issue in the courts.

In an editorial last May, the Pueblo Chieftain, a longstanding opponent of SDS, outlined Thiebaut's argument like this:

Mr. Thiebaut claims their actions to approve a certificate for SDS were arbitrary, capricious and contrary to law. He’s asking the court to reverse the decisions by the division and commission and to declare they exceeded their jurisdiction or abused discretion in issuing the certificate.

Mr. Thiebaut notes in his appeal — correctly — that SDS will adversely impact the water quality and water flows in the Arkansas River and the Fountain and Wild Horse creeks in Pueblo County.

The idea that Colorado Springs can suck huge amounts of water out of Lake Pueblo, pump it north, then send the return flows back to the Arkansas without adverse effects in Pueblo County is ridiculous. Fountain Creek, which would bear most of the return flows from El Paso County, already is a waterway overstressed with excess sedimentation and pollution by growth in Colorado Springs, which has drastically increased its domestic and stormwater returns.

Rummel tells us the court's ruling doesn't have an immediate impact on the pipeline project. It's unclear how long it will take the state to revisit the issue.